In this appeal from the issuance of a final restraining order (FRO), defendant Leonard Colon asserts that the family part judge's conduct of the trial violated his right to a fair trial. We agree and reverse and remand for a new trial.

These are the relevant facts. Plaintiff Melissa Rivas filed a complaint pursuant to the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -35. In her complaint, plaintiff alleges that defendant

did endanger plaintiff's life, health or well being . . . by, on 05/05/2008 at 08:00 PM defendant was on the phone w/ 7yr old daughter. He had the child relaying messages to [plaintiff] and [plaintiff's] boyfriend which made the child uncomfortable. After believing [defendant] had hung up, [plaintiff] told the child that what [defendant] was doing was wrong and disrespectful. The [defendant] heard this and became enraged. [Defendant] showed up at [plaintiff's] home 10 mins. later. He was banging on the door and screaming for [plaintiff's] boyfriend to come outside and be a man. He screamed that [plaintiff] was a fucking bitch and other degrading things. [Plaintiff] was afraid so she called the police. He got in his car, backed up and idled in his car for a few minutes then zoomed back into her driveway as if he was going to do something else. He ended up leaving. The 7yr old was crying and upset. After the police came [defendant] called [plaintiff] back raging and cursing about her and her boyfriend. The call lasted about 8 mins. . . .

5/5/08-When [defendant] showed up @ [plaintiff's] home it was with the intention to physically confront [plaintiff's] boyfriend.

Included in the complaint was a brief history of past allegations of domestic violence.

Based on these allegations, another family part judge issued a temporary restraining order (TRO), among other things, restraining defendant from returning to the scene of the domestic violence, barring defendant from plaintiff's residence and place of business and confirming custody of the parties' three children. Additionally, the order confirmed the support and parenting time for defendant, consistent with a judgment of divorce previously entered in a dissolution action in the family part. The TRO was entered on May 6, 2008, and the final hearing scheduled for May 14, 2008.

The final hearing was abbreviated. Following the parties being sworn, the judge read the allegations from the complaint and then asked plaintiff if there had been prior restraining orders. Plaintiff confirmed that there had been three prior TROs that had been dismissed. After hearing an explanation from plaintiff as to the reason for the dismissal, the judge commented: "[t]he fact that you keep dismissing and he goes and he does it again, and each time it gets worse and worse. Sir, what do you have to say about this?"

Defendant proceeded to state that the allegations were false and to discuss past allegations. After hearing some colloquy regarding events that had allegedly taken place in November 2007, the following dialogue ensued:

THE COURT: What day are you talking about?

MS. RIVAS: November 7th of —

THE COURT: All right. I'm not concerned about that. I'm —

MS. RIVAS: Okay.

THE COURT: — more concerned about the more recent allegations.

MS. RIVAS: Okay.

THE COURT: All right. So — I mean, the history is clear. It's — it's documented in prior restraining orders, but, you know, the — the acts at this time, the terroristic threats and the harassment.

Sir, I believe her and I believe that you are a continuing threat. That you threaten to blow up her car, her parents' car, business. The — the — the diapers. The whole thing. The prior history with the physical abuse.

MR. COLON: Okay.

THE COURT: your position is this is all fabricated, that you've never engaged in this behavior. Is that correct?

MR. COLON: Yes.

THE COURT: All right. I find that —

MR. COLON: I — I have —

THE COURT: — you're not telling the truth. I find that —

MR. COLON: Okay.

THE COURT: — you have committed the acts of domestic violence set forth in the plaintiff's complaint. I find that her testimony is credible. I find that she is entitled to a final restraining order based upon the acts of domestic violence, and, specifically, the threats, terroristic threats and harassment.

I'm ordering that you be barred from plaintiff's residence, place of employment. From oral — oral, written, personal, electronic, or other communication with the plaintiff, Dino Guadalupe and Raphael Rivas, from making or causing anyone else to make harassing communications to the plaintiff, Dino Guadalupe and Raphael.

Prohibited from stalking, following, threatening to harm, stalk, or follow, the above named individuals.

The judge then entered orders incorporating the orders previously entered in the divorce proceeding. Finally, she entered a civil penalty of $400 and executed a FRO. This appeal followed.

On appeal, defendant asserts that he was not afforded due process, specifically, that the determination was not supported by the record adduced at the hearing, nor was he afforded cross-examination or an opportunity to introduce evidence on his own behalf.

The DVA was designed to provide maximum protection to victims of domestic violence. N.J.S.A. 2C:25-18. See also In re E.F.G., 398 N.J. Super. 539, 546 (App.Div. 2008) (noting that "affording the victims of domestic violence the maximum protection the law has to offer is a matter of vital and significant public policy in New Jersey."). The procedures for implementing the DVA are designed to provide immediate and long-term relief in a summary manner. Pressler, Current N.J. Court Rules, comment 4.3 on R. 5:7A (2009). Yet, the summary nature of the proceedings does not dispense with the requirement that litigants be afforded due process in the resolution of a domestic violence complaint. Peterson v. Peterson, 374 N.J. Super. 116, 125 (App.Div. 2005). See also H.E.S. v. J.C.S., 175 N.J. 309, 324 (2003) (finding due process violation where defendant received the domestic violence complaint against him only one day prior to return date, defendant's request for adjournment was denied, and an FRO was granted based on allegations not contained in the complaint); Franklin v. Sloskey, 385 N.J. Super. 534, 540 (App.Div. 2006) (finding a due process violation where the trial court granted an FRO when plaintiff did not file a domestic violence complaint nor applied for a TRO).

"The conduct of the domestic violence hearing itself must accord with at least minimal requirements of due process, including the right of defendant to conduct cross-examination and to offer the testimony of witnesses, and the court must make findings of fact, particularly credibility findings." Pressler, Current N.J. Rules, comment 4.3 on R. 5:7A (2009). As we noted in Peterson:

We are mindful of the heavy burden on Family Part judges, and the "burgeoning domestic violence case-load in the Superior Court." But we are troubled by the informality of the proceedings and the failure to afford defendant essential procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses in his own defense.

None of these safeguards were afforded to defendant here. Not only was no mention made of cross-examination or the right to call witnesses, aside from the judge's recitation of the allegations of the complaint together with a colloquy with plaintiff about alleged past acts of domestic violence, no testimony was adduced as to the facts that formed the basis of the complaint before the judge that day. Plaintiff never was asked nor did she testify to any of the events of May 5, 2008; those facts were described solely by the judge. This is not the "adequate, substantial [or] credible evidence" that we require to sustain a finding of domestic violence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

We recognize that prior acts of domestic violence, if established, can be considered by the trial judge in granting a FRO, N.J.S.A. 2C:25-29a(1), but these past acts cannot form the sole basis for proving the allegations of the present complaint under N.J.S.A. 2C:25-19a. See Silver v. Silver, 387 N.J. Super. 112, 125 (App.Div. 2006) (noting that when considering a domestic violence complaint, the judge must first "determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred"(emphasis added)).

As we previously noted, we recognize the increasing dockets that are dominating the domestic violence calendar, but due process is so fundamental to our system of justice that it cannot be subordinated in the face of time pressures. From a practical perspective, this case took ten minutes to complete. To afford defendant his basic due process rights required the expenditure of but a few minutes of additional time.

Defendant is entitled to a new trial on the final restraining order. We vacate the November 14, 2008 FRO and remand for a new trial. At oral argument on this appeal, plaintiff's attorney requested that the temporary restraining order remain in place, and defendant, through counsel, agreed.

Accordingly, we reinstate the November 6, 2008 temporary restraining order, which shall remain in effect pending the hearing on the final restraining order. That trial shall be conducted within ten days of the receipt of this opinion.

We reverse and remand to the family part for a new trial. We do not retain jurisdiction.

Tuesday, April 21, 2009

This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1715-07T4 1715-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD L. CHAPMAN, SR.,

Defendant-Appellant.

_____________________________

Argued March 18, 2009 - Decided

Before Judges Baxter and King.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 41-07.

This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.

The State's case was presented by Officer Matthew Mercuri. The officer described the violation which he said he observed at 10:01 p.m. on April 28, 2007, a Saturday evening. The record is unclear on the nature of the intersection, specifically if either street is a one-way street and if the intersection is controlled by stop signs, or any other traffic signs. We had great difficulty understanding from the transcribed record the nature of the Jones and York Streets intersection, where the violation allegedly occurred.

After oral argument we became concerned that this information may be critical to the appellant's claim that "no other traffic or persons could have been affected." N.J.S.A. 39:4-126 states in pertinent part:

No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 39:4-123, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway, or start or back a vehicle unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.

[Emphasis added.]

See State v. Williamson, 138 N.J. 302, 304 (1994); State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (statute does not include requirement that a turn will affect other traffic, merely that it have the potential to do so).

We conclude upon our review of this record that supplementation of the record is necessary for the trier-of-fact to determine whether the failure to signal could have affected other traffic, either pedestrian or vehicular, under the statute. Specifically, during appellate oral argument, defendant argued that no one could have been puzzled by his intentions, or endangered by his failure to signal, because York Avenue is a one-way street, and Jones Avenue comes to a dead-end at its intersection with York. If that contention is correct, his claim that his failure to signal could not have endangered anyone may well have merit; however, the present state of the record does not enable us to evaluate this contention. We order this remand for supplementation of the "defective" record pursuant to Rule 3:23-8(a)(3). Judge Morley shall take such additional testimony from each party as the interests of justice requires, hear argument, and decide afresh the question of guilt or innocence on the charge. We think this is the "fast and fair way to adequately develop the record" for decision on the trial de novo and on further appeal, if necessary. State v. Hermanns, 278 N.J. Super. 19, 26 (App. Div. 1994); see also Pressler, Current N.J. Court Rules, comment 1 on R. 1:1-2 ("the achievement of procedural due process in the service of substantial justice on the merits" is the "guiding principle" of interpretation and application of court rules). The case is remanded to Judge Morley to supplement the record and reconsider his judgment in light of any additional testimony offered by the parties on the nature of the intersection.

This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1715-07T4 1715-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD L. CHAPMAN, SR.,

Defendant-Appellant.

_____________________________

Argued March 18, 2009 - Decided

Before Judges Baxter and King.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 41-07.

This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.

The State's case was presented by Officer Matthew Mercuri. The officer described the violation which he said he observed at 10:01 p.m. on April 28, 2007, a Saturday evening. The record is unclear on the nature of the intersection, specifically if either street is a one-way street and if the intersection is controlled by stop signs, or any other traffic signs. We had great difficulty understanding from the transcribed record the nature of the Jones and York Streets intersection, where the violation allegedly occurred.

After oral argument we became concerned that this information may be critical to the appellant's claim that "no other traffic or persons could have been affected." N.J.S.A. 39:4-126 states in pertinent part:

No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 39:4-123, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway, or start or back a vehicle unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.

[Emphasis added.]

See State v. Williamson, 138 N.J. 302, 304 (1994); State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (statute does not include requirement that a turn will affect other traffic, merely that it have the potential to do so).

We conclude upon our review of this record that supplementation of the record is necessary for the trier-of-fact to determine whether the failure to signal could have affected other traffic, either pedestrian or vehicular, under the statute. Specifically, during appellate oral argument, defendant argued that no one could have been puzzled by his intentions, or endangered by his failure to signal, because York Avenue is a one-way street, and Jones Avenue comes to a dead-end at its intersection with York. If that contention is correct, his claim that his failure to signal could not have endangered anyone may well have merit; however, the present state of the record does not enable us to evaluate this contention. We order this remand for supplementation of the "defective" record pursuant to Rule 3:23-8(a)(3). Judge Morley shall take such additional testimony from each party as the interests of justice requires, hear argument, and decide afresh the question of guilt or innocence on the charge. We think this is the "fast and fair way to adequately develop the record" for decision on the trial de novo and on further appeal, if necessary. State v. Hermanns, 278 N.J. Super. 19, 26 (App. Div. 1994); see also Pressler, Current N.J. Court Rules, comment 1 on R. 1:1-2 ("the achievement of procedural due process in the service of substantial justice on the merits" is the "guiding principle" of interpretation and application of court rules). The case is remanded to Judge Morley to supplement the record and reconsider his judgment in light of any additional testimony offered by the parties on the nature of the intersection.

dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.

The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.

Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.

In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment. The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:

Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fianc�e, my newborn son, and her -- her family.

So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.

So, at 10:30 that morning they ran -- the - - the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.

So I told them to just go back to their mother's car because she was waiting outside the house, my fianc�e's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fianc�e who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me for no reason, to the extent, Your Honor, that I don't understand why my kids are waiting outside. They should be in school right now.

Defendant brought the children to testify, but plaintiff successfully asked the trial judge to preclude that because they should not be "involved" in the dispute between their parents.

According to defendant's testimony:

There was no screaming and yelling. My sons are present here today because they were the ones who made the call, and there was four calls, and I have phone records to show that. It was not eight calls made, and my sons made the call to their father, asking if he would please take them to the doctor, and it was because my son broke his thumb on the Sunday, which is also here on this complaint, November 11th, in the presence of his father and his father neglected to take him to the hospital to get x-rays because he felt that this thumb was not broken. It was only when I was called by my son, who is present here today, to tell me, mom, I think I broke my finger and my father won't take me to the hospital, I had to call the Pompton Lakes Police Department, which I have records of the police report that was filed, to send a police officer to his fianc�e's home to ask and send the child to the hospital. And I did not have the fianc�e's address. I went based on the phone number.

Defendant further explained what happened on the day the thumb was broken:

Austin, my 12-year-old son, called me at -- shortly after 3:00 p.m. on my cell phone and said he fell, he was crying, and he thinks he broke his thumb, he heard a snap. And I asked him, my son Austin, to put his father on the phone, asked his father to please take him to the hospital, and he said, he's fine, he's just got some swelling, this will make a man out of him, and hung up the phone on me.

I had to call again. I repeated the call about three times. He answered the phone, what the f-- do you want, and finally, just -- he hung up the phone on me numerous times, which is a pattern, and I ended up calling the Pompton Lakes Police Department, giving them the number where my son called me from, and asking for them to please check on my son because I got -- I received a call from my 12-year-old son who stated he believed he broke his finger and the father refused to take him to the hospital.

Now, I also have hospital records and the police report.

Plaintiff further explained that the son had "a very low tolerance of pain," ice was applied, and the son was asked to call his mother. He said defendant refused to give him "the insurance information," but he took the child to the hospital where x-rays revealed the finger was broken. However, defendant insisted that plaintiff didn't arrive at the hospital until 7:10 p.m., almost four hours after her calls and over one hour after the police visit. Defendant also testified plaintiff was home the next morning and could have taken their son to the hand specialist.

The trial judge ruled:

The Court: All Right. Let me tell you how -- simple this is to me. I find I have jurisdiction over this matter.

I find that you committed the predicate offense of harassment by instructing your boys to call him four times and by then going to his house. I find that you were harassing him and I'm going to enter a final order. You are not to contact him any further. You are not to instruct anyone else to contact him. He can -- he can make separate arrangements for -- for visitation or for communication with the children, but you're all finished with this type of conduct. That was totally, totally harassment.

Ms. Balarin: My sons are here, Your Honor, and you can ask them personally.

The Court: They couldn't -- you just admitted to me enough for me to sustain the case. I don't need another witness. You harassed him. You told them to call him four times, and when he made --

Ms. Balarin: I didn't tell my son to call four times.

The Court: Excuse me. Excuse me. Wait in the back of the courtroom for a copy of the order. You're permanently restrained from contacting him.

Defendant subsequently retained counsel. At the motion for reconsideration hearing on February 14, 2008, defendant's counsel stated he did not receive the transcript of the trial, which he had ordered, although he suggested defendant couldn't afford an expedited copy. The judge said he would read the transcript when it arrived before deciding the application and whether to grant a new trial.

On March 28, 2008, further colloquy was conducted on the motion for reconsideration after the judge had reviewed the original transcript. The judge then ruled:

she would have had better representation if she had a attorney here, is -- I mean there's no way you can doubt that. There's -- I've seen very few instances in my entire career where a person is better off going to court without an attorney than with an attorney.

But this is an important matter. The -- the defendant knows that. The plaintiff knows that. People come in here every day of the week, and if I were to go back and interfere with a judgment of the Court because someone said they were too nervous to tell the Court that they wanted to get counsel and wanted a chance where they could get counsel, nothing would be final.

And really it's only for that reason, as far as the -- the case is concerned, the circumstances of the case are concerned, you know, there might be an -- an impact on credibility. There might be a lot of impacts with a counsel, but that's not for me to decide now.

It's too bad that, especially with such a good attorney, she -- she wasn't represented that day, but I'm not going to reconsider and -- and make this into anything but what it is. It's a permanent order, based upon the fact that she didn't exercise her right to have counsel.

Plaintiff did not file a response to the appeal and does not defend the FRO before us. We acknowledge that we are bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1988). This is especially true when questions of credibility are involved. Id. at 412. We also acknowledge that "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we must accord special deference to the fact finding of the Family Part. Id. at 413.

In this case, the record does not demonstrate that harassment occurred within the meaning of the statute. See N.J.S.A. 2C:33-4. Certainly the defendant's words do not suffice. See N.J.S.A. 2C:33-4(a); State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Moreover, particularly in the absence of proof of a history of domestic violence, the circumstances do not suggest a purpose to harass. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. Castagna, 387 N.J. Super. 598, 605-07 (App. Div.), certif. denied, 188 N.J. 577 (2006); State v. B.H., 290 N.J. Super. 588, 597 (App. Div. 1996), aff'd in part and rev'd in part, 149 N.J. 564 (1997). In any event, given the absence of proof of a pattern or history of improper conduct and the fact that the incident was a reaction to the son's injury, the FRO was not necessary to protect plaintiff. Silver, supra, 387 N.J. Super. at 127-28.

Accordingly, the judgment is reversed and the FRO shall be vacated. The parties may address any relevant issues to the Family Part incident to any FM proceedings therein.

dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.

The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.

Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.

In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment. The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:

Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fianc�e, my newborn son, and her -- her family.

So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.

So, at 10:30 that morning they ran -- the - - the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.

So I told them to just go back to their mother's car because she was waiting outside the house, my fianc�e's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fianc�e who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me for no reason, to the extent, Your Honor, that I don't understand why my kids are waiting outside. They should be in school right now.

Defendant brought the children to testify, but plaintiff successfully asked the trial judge to preclude that because they should not be "involved" in the dispute between their parents.

According to defendant's testimony:

There was no screaming and yelling. My sons are present here today because they were the ones who made the call, and there was four calls, and I have phone records to show that. It was not eight calls made, and my sons made the call to their father, asking if he would please take them to the doctor, and it was because my son broke his thumb on the Sunday, which is also here on this complaint, November 11th, in the presence of his father and his father neglected to take him to the hospital to get x-rays because he felt that this thumb was not broken. It was only when I was called by my son, who is present here today, to tell me, mom, I think I broke my finger and my father won't take me to the hospital, I had to call the Pompton Lakes Police Department, which I have records of the police report that was filed, to send a police officer to his fianc�e's home to ask and send the child to the hospital. And I did not have the fianc�e's address. I went based on the phone number.

Defendant further explained what happened on the day the thumb was broken:

Austin, my 12-year-old son, called me at -- shortly after 3:00 p.m. on my cell phone and said he fell, he was crying, and he thinks he broke his thumb, he heard a snap. And I asked him, my son Austin, to put his father on the phone, asked his father to please take him to the hospital, and he said, he's fine, he's just got some swelling, this will make a man out of him, and hung up the phone on me.

I had to call again. I repeated the call about three times. He answered the phone, what the f-- do you want, and finally, just -- he hung up the phone on me numerous times, which is a pattern, and I ended up calling the Pompton Lakes Police Department, giving them the number where my son called me from, and asking for them to please check on my son because I got -- I received a call from my 12-year-old son who stated he believed he broke his finger and the father refused to take him to the hospital.

Now, I also have hospital records and the police report.

Plaintiff further explained that the son had "a very low tolerance of pain," ice was applied, and the son was asked to call his mother. He said defendant refused to give him "the insurance information," but he took the child to the hospital where x-rays revealed the finger was broken. However, defendant insisted that plaintiff didn't arrive at the hospital until 7:10 p.m., almost four hours after her calls and over one hour after the police visit. Defendant also testified plaintiff was home the next morning and could have taken their son to the hand specialist.

The trial judge ruled:

The Court: All Right. Let me tell you how -- simple this is to me. I find I have jurisdiction over this matter.

I find that you committed the predicate offense of harassment by instructing your boys to call him four times and by then going to his house. I find that you were harassing him and I'm going to enter a final order. You are not to contact him any further. You are not to instruct anyone else to contact him. He can -- he can make separate arrangements for -- for visitation or for communication with the children, but you're all finished with this type of conduct. That was totally, totally harassment.

Ms. Balarin: My sons are here, Your Honor, and you can ask them personally.

The Court: They couldn't -- you just admitted to me enough for me to sustain the case. I don't need another witness. You harassed him. You told them to call him four times, and when he made --

Ms. Balarin: I didn't tell my son to call four times.

The Court: Excuse me. Excuse me. Wait in the back of the courtroom for a copy of the order. You're permanently restrained from contacting him.

Defendant subsequently retained counsel. At the motion for reconsideration hearing on February 14, 2008, defendant's counsel stated he did not receive the transcript of the trial, which he had ordered, although he suggested defendant couldn't afford an expedited copy. The judge said he would read the transcript when it arrived before deciding the application and whether to grant a new trial.

On March 28, 2008, further colloquy was conducted on the motion for reconsideration after the judge had reviewed the original transcript. The judge then ruled:

she would have had better representation if she had a attorney here, is -- I mean there's no way you can doubt that. There's -- I've seen very few instances in my entire career where a person is better off going to court without an attorney than with an attorney.

But this is an important matter. The -- the defendant knows that. The plaintiff knows that. People come in here every day of the week, and if I were to go back and interfere with a judgment of the Court because someone said they were too nervous to tell the Court that they wanted to get counsel and wanted a chance where they could get counsel, nothing would be final.

And really it's only for that reason, as far as the -- the case is concerned, the circumstances of the case are concerned, you know, there might be an -- an impact on credibility. There might be a lot of impacts with a counsel, but that's not for me to decide now.

It's too bad that, especially with such a good attorney, she -- she wasn't represented that day, but I'm not going to reconsider and -- and make this into anything but what it is. It's a permanent order, based upon the fact that she didn't exercise her right to have counsel.

Plaintiff did not file a response to the appeal and does not defend the FRO before us. We acknowledge that we are bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1988). This is especially true when questions of credibility are involved. Id. at 412. We also acknowledge that "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we must accord special deference to the fact finding of the Family Part. Id. at 413.

In this case, the record does not demonstrate that harassment occurred within the meaning of the statute. See N.J.S.A. 2C:33-4. Certainly the defendant's words do not suffice. See N.J.S.A. 2C:33-4(a); State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Moreover, particularly in the absence of proof of a history of domestic violence, the circumstances do not suggest a purpose to harass. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. Castagna, 387 N.J. Super. 598, 605-07 (App. Div.), certif. denied, 188 N.J. 577 (2006); State v. B.H., 290 N.J. Super. 588, 597 (App. Div. 1996), aff'd in part and rev'd in part, 149 N.J. 564 (1997). In any event, given the absence of proof of a pattern or history of improper conduct and the fact that the incident was a reaction to the son's injury, the FRO was not necessary to protect plaintiff. Silver, supra, 387 N.J. Super. at 127-28.

Accordingly, the judgment is reversed and the FRO shall be vacated. The parties may address any relevant issues to the Family Part incident to any FM proceedings therein.

dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.

The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.

Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.

In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment. The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:

Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fianc�e, my newborn son, and her -- her family.

So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.

So, at 10:30 that morning they ran -- the - - the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.

So I told them to just go back to their mother's car because she was waiting outside the house, my fianc�e's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fianc�e who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me for no reason, to the extent, Your Honor, that I don't understand why my kids are waiting outside. They should be in school right now.

Defendant brought the children to testify, but plaintiff successfully asked the trial judge to preclude that because they should not be "involved" in the dispute between their parents.

According to defendant's testimony:

There was no screaming and yelling. My sons are present here today because they were the ones who made the call, and there was four calls, and I have phone records to show that. It was not eight calls made, and my sons made the call to their father, asking if he would please take them to the doctor, and it was because my son broke his thumb on the Sunday, which is also here on this complaint, November 11th, in the presence of his father and his father neglected to take him to the hospital to get x-rays because he felt that this thumb was not broken. It was only when I was called by my son, who is present here today, to tell me, mom, I think I broke my finger and my father won't take me to the hospital, I had to call the Pompton Lakes Police Department, which I have records of the police report that was filed, to send a police officer to his fianc�e's home to ask and send the child to the hospital. And I did not have the fianc�e's address. I went based on the phone number.

Defendant further explained what happened on the day the thumb was broken:

Austin, my 12-year-old son, called me at -- shortly after 3:00 p.m. on my cell phone and said he fell, he was crying, and he thinks he broke his thumb, he heard a snap. And I asked him, my son Austin, to put his father on the phone, asked his father to please take him to the hospital, and he said, he's fine, he's just got some swelling, this will make a man out of him, and hung up the phone on me.

I had to call again. I repeated the call about three times. He answered the phone, what the f-- do you want, and finally, just -- he hung up the phone on me numerous times, which is a pattern, and I ended up calling the Pompton Lakes Police Department, giving them the number where my son called me from, and asking for them to please check on my son because I got -- I received a call from my 12-year-old son who stated he believed he broke his finger and the father refused to take him to the hospital.

Now, I also have hospital records and the police report.

Plaintiff further explained that the son had "a very low tolerance of pain," ice was applied, and the son was asked to call his mother. He said defendant refused to give him "the insurance information," but he took the child to the hospital where x-rays revealed the finger was broken. However, defendant insisted that plaintiff didn't arrive at the hospital until 7:10 p.m., almost four hours after her calls and over one hour after the police visit. Defendant also testified plaintiff was home the next morning and could have taken their son to the hand specialist.

The trial judge ruled:

The Court: All Right. Let me tell you how -- simple this is to me. I find I have jurisdiction over this matter.

I find that you committed the predicate offense of harassment by instructing your boys to call him four times and by then going to his house. I find that you were harassing him and I'm going to enter a final order. You are not to contact him any further. You are not to instruct anyone else to contact him. He can -- he can make separate arrangements for -- for visitation or for communication with the children, but you're all finished with this type of conduct. That was totally, totally harassment.

Ms. Balarin: My sons are here, Your Honor, and you can ask them personally.

The Court: They couldn't -- you just admitted to me enough for me to sustain the case. I don't need another witness. You harassed him. You told them to call him four times, and when he made --

Ms. Balarin: I didn't tell my son to call four times.

The Court: Excuse me. Excuse me. Wait in the back of the courtroom for a copy of the order. You're permanently restrained from contacting him.

Defendant subsequently retained counsel. At the motion for reconsideration hearing on February 14, 2008, defendant's counsel stated he did not receive the transcript of the trial, which he had ordered, although he suggested defendant couldn't afford an expedited copy. The judge said he would read the transcript when it arrived before deciding the application and whether to grant a new trial.

On March 28, 2008, further colloquy was conducted on the motion for reconsideration after the judge had reviewed the original transcript. The judge then ruled:

she would have had better representation if she had a attorney here, is -- I mean there's no way you can doubt that. There's -- I've seen very few instances in my entire career where a person is better off going to court without an attorney than with an attorney.

But this is an important matter. The -- the defendant knows that. The plaintiff knows that. People come in here every day of the week, and if I were to go back and interfere with a judgment of the Court because someone said they were too nervous to tell the Court that they wanted to get counsel and wanted a chance where they could get counsel, nothing would be final.

And really it's only for that reason, as far as the -- the case is concerned, the circumstances of the case are concerned, you know, there might be an -- an impact on credibility. There might be a lot of impacts with a counsel, but that's not for me to decide now.

It's too bad that, especially with such a good attorney, she -- she wasn't represented that day, but I'm not going to reconsider and -- and make this into anything but what it is. It's a permanent order, based upon the fact that she didn't exercise her right to have counsel.

Plaintiff did not file a response to the appeal and does not defend the FRO before us. We acknowledge that we are bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1988). This is especially true when questions of credibility are involved. Id. at 412. We also acknowledge that "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we must accord special deference to the fact finding of the Family Part. Id. at 413.

In this case, the record does not demonstrate that harassment occurred within the meaning of the statute. See N.J.S.A. 2C:33-4. Certainly the defendant's words do not suffice. See N.J.S.A. 2C:33-4(a); State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Moreover, particularly in the absence of proof of a history of domestic violence, the circumstances do not suggest a purpose to harass. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. Castagna, 387 N.J. Super. 598, 605-07 (App. Div.), certif. denied, 188 N.J. 577 (2006); State v. B.H., 290 N.J. Super. 588, 597 (App. Div. 1996), aff'd in part and rev'd in part, 149 N.J. 564 (1997). In any event, given the absence of proof of a pattern or history of improper conduct and the fact that the incident was a reaction to the son's injury, the FRO was not necessary to protect plaintiff. Silver, supra, 387 N.J. Super. at 127-28.

Accordingly, the judgment is reversed and the FRO shall be vacated. The parties may address any relevant issues to the Family Part incident to any FM proceedings therein.

dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.

The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.

Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.

In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment. The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:

Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fianc�e, my newborn son, and her -- her family.

So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.

So, at 10:30 that morning they ran -- the - - the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.

So I told them to just go back to their mother's car because she was waiting outside the house, my fianc�e's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fianc�e who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me for no reason, to the extent, Your Honor, that I don't understand why my kids are waiting outside. They should be in school right now.

Defendant brought the children to testify, but plaintiff successfully asked the trial judge to preclude that because they should not be "involved" in the dispute between their parents.

According to defendant's testimony:

There was no screaming and yelling. My sons are present here today because they were the ones who made the call, and there was four calls, and I have phone records to show that. It was not eight calls made, and my sons made the call to their father, asking if he would please take them to the doctor, and it was because my son broke his thumb on the Sunday, which is also here on this complaint, November 11th, in the presence of his father and his father neglected to take him to the hospital to get x-rays because he felt that this thumb was not broken. It was only when I was called by my son, who is present here today, to tell me, mom, I think I broke my finger and my father won't take me to the hospital, I had to call the Pompton Lakes Police Department, which I have records of the police report that was filed, to send a police officer to his fianc�e's home to ask and send the child to the hospital. And I did not have the fianc�e's address. I went based on the phone number.

Defendant further explained what happened on the day the thumb was broken:

Austin, my 12-year-old son, called me at -- shortly after 3:00 p.m. on my cell phone and said he fell, he was crying, and he thinks he broke his thumb, he heard a snap. And I asked him, my son Austin, to put his father on the phone, asked his father to please take him to the hospital, and he said, he's fine, he's just got some swelling, this will make a man out of him, and hung up the phone on me.

I had to call again. I repeated the call about three times. He answered the phone, what the f-- do you want, and finally, just -- he hung up the phone on me numerous times, which is a pattern, and I ended up calling the Pompton Lakes Police Department, giving them the number where my son called me from, and asking for them to please check on my son because I got -- I received a call from my 12-year-old son who stated he believed he broke his finger and the father refused to take him to the hospital.

Now, I also have hospital records and the police report.

Plaintiff further explained that the son had "a very low tolerance of pain," ice was applied, and the son was asked to call his mother. He said defendant refused to give him "the insurance information," but he took the child to the hospital where x-rays revealed the finger was broken. However, defendant insisted that plaintiff didn't arrive at the hospital until 7:10 p.m., almost four hours after her calls and over one hour after the police visit. Defendant also testified plaintiff was home the next morning and could have taken their son to the hand specialist.

The trial judge ruled:

The Court: All Right. Let me tell you how -- simple this is to me. I find I have jurisdiction over this matter.

I find that you committed the predicate offense of harassment by instructing your boys to call him four times and by then going to his house. I find that you were harassing him and I'm going to enter a final order. You are not to contact him any further. You are not to instruct anyone else to contact him. He can -- he can make separate arrangements for -- for visitation or for communication with the children, but you're all finished with this type of conduct. That was totally, totally harassment.

Ms. Balarin: My sons are here, Your Honor, and you can ask them personally.

The Court: They couldn't -- you just admitted to me enough for me to sustain the case. I don't need another witness. You harassed him. You told them to call him four times, and when he made --

Ms. Balarin: I didn't tell my son to call four times.

The Court: Excuse me. Excuse me. Wait in the back of the courtroom for a copy of the order. You're permanently restrained from contacting him.

Defendant subsequently retained counsel. At the motion for reconsideration hearing on February 14, 2008, defendant's counsel stated he did not receive the transcript of the trial, which he had ordered, although he suggested defendant couldn't afford an expedited copy. The judge said he would read the transcript when it arrived before deciding the application and whether to grant a new trial.

On March 28, 2008, further colloquy was conducted on the motion for reconsideration after the judge had reviewed the original transcript. The judge then ruled:

she would have had better representation if she had a attorney here, is -- I mean there's no way you can doubt that. There's -- I've seen very few instances in my entire career where a person is better off going to court without an attorney than with an attorney.

But this is an important matter. The -- the defendant knows that. The plaintiff knows that. People come in here every day of the week, and if I were to go back and interfere with a judgment of the Court because someone said they were too nervous to tell the Court that they wanted to get counsel and wanted a chance where they could get counsel, nothing would be final.

And really it's only for that reason, as far as the -- the case is concerned, the circumstances of the case are concerned, you know, there might be an -- an impact on credibility. There might be a lot of impacts with a counsel, but that's not for me to decide now.

It's too bad that, especially with such a good attorney, she -- she wasn't represented that day, but I'm not going to reconsider and -- and make this into anything but what it is. It's a permanent order, based upon the fact that she didn't exercise her right to have counsel.

Plaintiff did not file a response to the appeal and does not defend the FRO before us. We acknowledge that we are bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1988). This is especially true when questions of credibility are involved. Id. at 412. We also acknowledge that "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we must accord special deference to the fact finding of the Family Part. Id. at 413.

In this case, the record does not demonstrate that harassment occurred within the meaning of the statute. See N.J.S.A. 2C:33-4. Certainly the defendant's words do not suffice. See N.J.S.A. 2C:33-4(a); State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Moreover, particularly in the absence of proof of a history of domestic violence, the circumstances do not suggest a purpose to harass. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. Castagna, 387 N.J. Super. 598, 605-07 (App. Div.), certif. denied, 188 N.J. 577 (2006); State v. B.H., 290 N.J. Super. 588, 597 (App. Div. 1996), aff'd in part and rev'd in part, 149 N.J. 564 (1997). In any event, given the absence of proof of a pattern or history of improper conduct and the fact that the incident was a reaction to the son's injury, the FRO was not necessary to protect plaintiff. Silver, supra, 387 N.J. Super. at 127-28.

Accordingly, the judgment is reversed and the FRO shall be vacated. The parties may address any relevant issues to the Family Part incident to any FM proceedings therein.

After pleading guilty to his third offense for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, at sentencing, defendant was allowed to serve a portion of his jail time in the Sheriff's Labor Assistance Program (SLAP). A subsequent Appellate Division decision held that the mandatory jail time imposed by the statute for a DWI offense, N.J.S.A. 39:4-50(a)(3), could not be served in a SLAP program. State v. Luthe, 383 N.J. Super. 512, 514-15 (App. Div. 2006). As a result, defendant's SLAP sentence was vacated, requiring him to serve time in jail. Since defendant had already begun serving his time in SLAP, he contends that this change in his sentence constitutes an ex post facto application of the law, and that it violates principles of double jeopardy, due process, and fundamental fairness. We disagree. Because the original sentence was an illegal sentence, it may be corrected at any time. However, since the service in SLAP was pursuant to a "plea agreement", we stay the sentence for forty-five days in order that defendant may move to vacate the plea.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2516-07T42516-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GUSTAVO ALTAMIRANO,

Defendant-Appellant.

________________________________________

Argued January 13, 2009 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-085, Indictment No. 05-05-00185.

After pleading guilty to his third offense for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, at sentencing, defendant was allowed to serve a portion of his jail time in the Sheriff's Labor Assistance Program (SLAP). A subsequent Appellate Division decision held that the mandatory jail time imposed by the statute for a DWI offense, N.J.S.A. 39:4-50(a)(3), could not be served in a SLAP program. State v. Luthe, 383 N.J. Super. 512, 514-15 (App. Div. 2006). As a result, defendant's SLAP sentence was vacated, requiring him to serve time in jail. Since defendant had already begun serving his time in SLAP, he contends that this change in his sentence constitutes an ex post facto application of the law, and that it violates principles of double jeopardy, due process, and fundamental fairness. We disagree. Because the original sentence was an illegal sentence, it may be corrected at any time. However, since the service in SLAP was pursuant to a "plea agreement", we stay the sentence for forty-five days in order that defendant may move to vacate the plea.

On February 2, 2006, defendant pled guilty in Chester Township Municipal Court to the DWI charge. As part of a plea agreement, the related traffic complaints of reckless driving, failure to keep right, and failure to dim headlights were dismissed. This was defendant's third DWI offense. The Municipal Court judge suspended defendant's driving privileges for ten years, ordered him to serve at least forty-eight hours in the Intoxicated Driver Resource Center, and sentenced him to six months in jail. The judge stated that defendant would be allowed to serve ninety days of his jail time in SLAP and the balance in a rehabilitation program. The judge fined defendant $1,000 and assessed the requisite monetary costs, penalties, and assessments.

A month later, on March 6, 2006, we held that under the terms of the statute, N.J.S.A. 39:4-50(a)(3), third time DWI offenders could not participate in noncustodial programs as an alternative to jail time, but must serve their time in jail, except that they could serve up to ninety days in an inpatient rehabilitation program as expressly permitted by the statute. State v. Luthe, supra, 383 N.J. Super. at 514—15.

On May 12, 2006, in response to the Luthe decision, the Sheriff's Office determined that defendant could not serve his sentence in SLAP. By this time, defendant had already served ten days in SLAP. The matter came before the Municipal Court judge on July 6, 2006, and the judge, expressing some concern over the ex post facto issue, initially reaffirmed his placement of defendant into SLAP. However, upon reconsideration, the judge thereafter revoked the SLAP sentence and required that defendant serve ninety days in jail upon completion of his rehabilitation program. He stayed the sentence, pending appeal.

The Law Division judge, in his de novo review of the record in accordance with Rule 3:23-8(a), State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995), determined that defendant had been given an illegal sentence, which may be corrected at any time. However, in light of the fact that the sentence was part of a plea agreement, the judge determined that defendant may withdraw his plea, and if reconvicted after a trial, would be given credit for the ten days served in SLAP. The judge explained his decision as follows:

Now, defendant makes . . . an argument concerning ex post facto, double jeopardy and due process. Generally, any statute which makes a prior act that was innocent when committed a crime, which makes punishment for a crime more burdensome after its commission, or which deprives a defendant of a defense available when the act was committed, constitutes an ex post facto law. State v. T.P.M., 189 N.J. Super. 360 at 366 (App. Div. 1983).

Additionally, a defendant may not be resentenced where the defendant has accepted a plea offer, been sentenced in accordance therewith, and has begun to serve that sentence. State v. Veney, 327 N.J. Super. 458 at 462 (App. Div. 2000).

Here, N.J.S.A. 39:4-50(a)(3) was amended in 2004 to require a custodial sentence . . . in a "county jail or a work house" for [] third time DWI offenders, almost two years prior to the date of the defendant's offense in October of 2005. Therefore, defendant's original SLAP sentence was illegal because it was inconsistent with the statutory requirement.

Accordingly, the court finds that the defendant's ex post facto and double jeopardy arguments do not apply, because the original sentence of the defendant constituted an illegal sentence, which may be corrected at any time. And I would point out that the statute against which he was sentenced was already in place as amended.

So, it's not a situation where the punishment was enhanced . . . . That was the punishment to begin with. . . . He never had the option of SLAP to begin with. The court has spoken on that.

And that -- and that's unfortunate because he entered a plea agreement. He had . . . a plea bargain, and he should have gotten what he bargained for, but he didn't, and the court below did the only thing it could do, which was resentence in accordance with the law.

. . . .

Due process was to give him what he was entitled to under law. The fact that they bargained for something he wasn't entitled to and agreed to it, doesn't change the illegality of the sentence nor the reality of the situation. What Judge Mulhern did was to put him back to where he -- he could only be.

Now, the problem with this, as I see, and why I think there is some relief required here, is the parties bargained and made a mistake of fact and a mistake of law, and he should be put back in the position -- and I'm going to find that he entered an agreement when he thought he could get SLAP, and he could get rehabilitation for a period -- 90 days SLAP and 90 days rehab. Certainly, [he] never bargained and agreed to 180 days, which is now what he has.

. . . .

I'm wondering if we can do this? If Prosecutor -- you can prepare the -- the Order. The Order will provide that it's an illegal sentence. I've determined as a matter of law, it was an illegal sentence. No ex post facto applies. No estoppel applies. However, because it was an illegal sentence, I'm . . . in effect saying he can take his plea back. I'm rejecting his plea. He can take it back, and he starts all over again. He'll get credit if he's ultimately convicted for any time he's served, obviously. He should not be deprived of that. Even though it was an illegal sentence, there's no question he did 10 days of SLAP. So, he should get credit for that.

On appeal, defendant contends that the retraction of the SLAP sentence constitutes an ex post facto application of the law and that a new trial on the charge would constitute double jeopardy. He maintains that due process and fundamental fairness require that the SLAP sentence be reinstated.

After a careful consideration of the law and issues raised in this appeal, we affirm substantially for the reasons set forth by the Law Division judge. We add only the following comments.

Application of the holding in State v. Luthe, supra, 383

N.J. Super. 512, to defendant's sentence does not amount to an ex post facto law, because at the time defendant committed the offense the statute provided for the term of imprisonment he has received.

Both the New Jersey and federal constitutions forbid ex post facto laws. U.S. Const. art. I, � 9, cl. 3; U.S. Const. art. I, � 10, cl. 1; N.J. Const. art. IV, � 7, � 3. For a penal law to be considered ex post facto, it must be retrospective and it must disadvantage the offender. State v. Natale, 184 N.J. 458, 491 (2005). A law is considered retrospective if it "changes the legal consequences of acts completed before its effective date." State v. Fortin, 400 N.J. Super. 434, 445

A judicial decision may be considered an ex post facto law where its enlargement of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Id. at 490-91 (quoting Rogers v. Tennessee, 532 U.S. 451, 455, 121 S. Ct. 1693, 1697, 149 L. Ed.2d 697, 704 (2001)). Given the language in the statute providing for a period of incarceration, the holding in Luthe is not "unexpected or indefensible." We note that the defendant in Luthe did not raise an ex post facto argument.

Further, a judicial decision that does not increase the range of the defendant's sentence or retroactively apply a new statutory maximum does not disadvantage the defendant. See State v. Natale, supra, 184 N.J. at 489-92 (concluding that eliminating presumptive terms in the statutory sentencing scheme and allowing sentences up to the statutory maximum did not violate the prohibition against ex post facto laws). Here, when defendant committed the offense, indisputably, the statutory penalty was 180 days in jail. Since Luthe did not increase the maximum sentence that defendant could receive for the offense, it did not disadvantage him and the ex post facto prohibition has not been violated.

The order on appeal dated January 4, 2008, merely states that "[t]he decision of the municipal court to vacate the SLAP sentence is affirmed for the reasons stated on the record." It then stayed the matter twenty days pending appeal. The order does not expressly set forth the alternative of vacating the plea as directed by the judge. Accordingly, while we affirm the vacation of the SLAP sentence, we stay the sentence for a period of forty-five days to provide defendant time to move in the Law Division to vacate the plea.

Although the record refers to a plea agreement, defendant did not attempt to evade the substantive DWI charge, but only pled guilty in accordance with the then local understanding that the sentence could be served in a SLAP rather than in jail. As a result, we do not believe that the plea runs afoul of the general prohibition of plea agreements in DWI cases. See Guidelines for Operation of Plea Bargains in the Municipal Courts in New Jersey, Pressler, Current N.J. Court Rules, Appendix, Part VII, Guideline 4 at 2239 (2009).

Following a trial de novo in the Law Division, defendant was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). Because it was defendant's third DWI conviction, he was sentenced to 180 days in jail, with a maximum of 90 days to be served in an approved alcohol in-patient rehabilitation program; a ten-year suspension of his driving privileges and of his motor vehicle registration; and a $1,000 fine. The court also imposed all other appropriate costs, assessments, penalties and surcharges. However, the custodial portion of defendant's sentence was stayed pending the filing of a notice of appeal. Following the filing of his notice of appeal, defendant served ninety days of his custodial sentence in an in-patient alcoholic rehabilitation program. On April 11, 2007, the Law Division entered an order staying the remainder of defendant's custodial sentence, pending appeal. For reasons that follow, we remand this matter to the Law Division for further proceedings consistent with this opinion, and retain jurisdiction.

I.

On September 16, 2005, while operating his motor vehicle, defendant was involved in a one-car accident when his motor vehicle left the roadway and struck a tree. As a result of the collision, the motor vehicle's airbag deployed. Defendant did not lose consciousness and remained in his vehicle where he telephoned his wife and called for a tow truck. The police arrived at the scene at approximately 8:09 p.m.

Patrolman Brian Ahlert of the Florham Park Police Department was the first officer to approach defendant. Ahlert inquired whether defendant suffered any injuries or was in need of medical assistance. Defendant responded no to both questions. When Ahlert asked how the accident occurred, defendant only told the officer that the car had pulled to the right. During this conversation, Ahlert detected an odor of alcoholic beverage emanating from defendant's breath. Ahlert's observations of the accident scene disclosed that the motor vehicle suffered heavy front-end damage and there were 50 feet of tire tracks in the grass shoulder, indicating that the vehicle drifted off the travel portion of the roadway in a straight line, striking a tree and traffic sign approximately five feet from the edge of the road.

While Ahlert talked to defendant, Patrolman David Rubelowsky and several other officers of the Florham Park Police Department arrived on the scene, together with David Paige and his wife, both members of the Florham Park Memorial First Aid Squad. Also arriving at the scene at approximately the same time as the police, was defendant's wife.

On arrival, Paige approached defendant to evaluate whether defendant needed medical assistance. Defendant informed Paige that, although he felt pain in his knees, he did not lose consciousness; did not have neck or back pain; knew his name; knew where he was; and knew what had happened. Although Paige advised defendant that the ambulance squad was available to take him to the hospital for further evaluation, defendant indicated that he did not want to go. At one point, defendant began to demonstrate to Paige "that his knees were fine . . . [by dipping] down and [standing] back up . . . ." By dipping down, Paige explained that defendant "bent his knees a few inches" and said "see, my knees -- I'm fine."

In the interim, Ahlert made observation of the interior of defendant's motor vehicle. The patrolman observed a small empty airplane-size bottle of Johnny Walker Black Label scotch whiskey on the front passenger floorboard, and a one-half empty bottle (750 ml) of Sawyer Cellars Cabernet Sauvignon wine on the rear passenger floorboard. Based on his initial observations of defendant, Ahlert requested defendant to perform three field sobriety tests. Before administering the tests, in responding to Ahlert's questions, defendant denied that he had any injuries or other medical conditions that could have affected his performance of the sobriety tests.

Ahlert first administered the horizontal gaze nystagmus (HGN) test. Ahlert instructed defendant not to move his head when following the movement of the officer's pen; just to follow the movement of the pen with his eyes. Defendant failed to follow the instruction and moved his head while attempting to maintain visual sight of the officer's pen. Because there was debris on the roadway, the officer had the roadway swept prior to requesting defendant to perform the next two tests in front of his patrol vehicle.

Ahlert requested defendant to perform the heel-to-toe walking test by taking nine steps out, touching heel-to-toe in a straight line, turning, and walking nine steps back in the same fashion. After the officer demonstrated the test to defendant, defendant attempted to perform the test but took eleven steps out, not heel-to-toe but side-by-side, and then took thirteen steps back in the same manner.

The third test was the one-leg stand test. Defendant was instructed to raise one foot of his choice six inches off the ground, slightly out in front of him, and to count to thirty. On his first attempt, defendant did not raise his foot out in front of him, but rather raised it directly underneath his body. On his second attempt, defendant placed his foot down several times to maintain balance. Based on his observations, Ahlert formed an opinion that defendant was intoxicated. Defendant was arrested; placed into the rear of Ahlert's patrol vehicle; and transported to police headquarters.

On arrival at police headquarters, defendant was seated in the booking room approximately thirty-five feet away from the Sally Port door. Defendant was initially asked questions concerning his name, address, age, and other questions of a similar nature. Ahlert then gave defendant his Miranda warnings. After informing the patrolman that he understood his Miranda rights, defendant responded to the officer's questions concerning the alcohol he consumed that evening. Defendant informed Ahlert that he had three drinks that evening, one glass of scotch and two small glasses of wine, consuming the first drink at approximately 6:00 p.m. and the last drink at approximately 7:00 p.m. When asked whether he would provide a breath sample, defendant answered in the affirmative. While walking a short distance to the room where the Alcotest breath test instrument was located, Ahlert observed defendant stumble, almost walking into a wall. The breath test was administered by Rubelowsky outside of Ahlert's presence.

On completion of defendant's breath test, Ahlert met with defendant again in the booking room, completed defendant's paperwork and released defendant into the custody of his wife at 9:49 p.m. Ahlert described his observations of defendant's physical manifestations throughout the entire incident as: defendant swayed and staggered as he walked; swayed while he stood; spoke with a slightly slurred speech and in a slow manner; and had bloodshot and watery eyes with droopy eyelids.

In the Municipal Court proceedings, Ahlert and Paige testified in accord with the aforementioned. In addition, the State offered testimony of Patrolman Rubelowsky and placed in evidence a videotape taken with the camera in Ahlert's patrol vehicle. The videotape showed defendant's performance of the heel-to-toe walk and one-leg stand tests at the accident scene and of defendant seated in the rear of Ahlert's patrol vehicle as the vehicle proceeded to police headquarters.

Rubelowsky testified as follows. On his arrival at the accident scene, defendant was standing outside of his motor vehicle. Rubelowsky detected some fumes emanating from the airbag deployment and moved everyone away from defendant's motor vehicle to an area in front of Ahlert's patrol vehicle. While doing so, Rubelowsky observed the small scotch whiskey bottle and wine bottle in defendant's motor vehicle. On arrival of the first aid squad members, Rubelowsky heard defendant inform Paige that he was a doctor; he was fine; he did not need to go to the hospital and did not want medical attention. After he observed defendant fail the field sobriety tests, Rubelowsky formed an opinion of defendant's ability to operate a motor vehicle.

That he was not -- he was unsafe to be driving a motor vehicle on the road. He was intoxicated, the odor of alcohol was on his breath. His clothing was disheveled. His eyes were bloodshot and watery. He had been in an accident. . . . And [based on] my training and experience, and I formulated an opinion on Mr. Patel that he was under the influence of alcohol and he should not [have been] driving.

Rubelowsky followed Ahlert from the accident scene to the police headquarters in a separate police vehicle. While walking to the booking room, Rubelowsky opined that defendant swayed and "held out to walls for balance." Rubelowsky, a certified Alcotest operator, administered the breath test to defendant. Prior to administering the test, however, Rubelowsky inadvertently placed the wrong time of defendant's arrest into the Alcotest instrument. Instead of placing the time of 8:39 p.m. when defendant was arrested, he typed in 8:09 p.m., the time of the motor vehicle accident.

Defendant gave three breath samples. The first sample was provided at 8:54 p.m., but the minimum volume of breath was not achieved, resulting in the instrument not providing a blood-alcohol concentration (BAC) reading. Defendant provided a second sample at 8:58 p.m. that resulted in an IR reading and an EC reading of .205%. A third sample at 9:01 p.m. resulted in an IR reading of .216% and an EC reading of .213%. The Alcotest device reported as the final BAC test result, the lowest of the four IR and EC readings, truncated to two decimal places, or .20%.

Defendant's testimony as to the cause of the accident and his physical condition immediately thereafter contradicted that of the police officers and Paige. Defendant testified that on the day of the accident, after he finished regular office hours, he traveled to Orange to meet with Dr. Labessiere to discuss his possible purchase of Labessiere's office building on Northfield Avenue. Accompanying defendant, but in a separate automobile, was defendant's accountant. Defendant arrived at approximately 6:15 or 6:30 p.m., and the meeting lasted approximately one hour and fifteen minutes. During that time, defendant consumed a small, airplane-size bottle of Johnny Walker scotch whiskey that was provided to him by Labessiere. Following that, Labessiere offered defendant and his accountant some "French wine." Defendant testified that only one bottle was opened, and that both he and Labessiere consumed two small glasses of the wine, and his accountant consumed one small glass.

After the meeting, Labessiere gave the one-half bottle of wine to defendant and defendant placed the bottle on the rear floor of his motor vehicle prior to leaving the parking lot. While walking to his vehicle, defendant remembered that he had the empty airplane-size bottle of scotch in his pocket, and he placed that on the right front passenger seat. On traveling home, a distance of approximately eighteen miles, defendant's emergency beeper sounded, and while he attempted to observe the telephone number displayed in his pager, his vehicle left the roadway and struck the sign and tree.

Defendant testified that when the airbag deployed, it struck him in his face and chest. After impact, he sat in his motor vehicle for a few minutes, not knowing what had happened. Although he did not state from what part of his body, defendant testified that he bled heavily. He did not feel any pain, but had a burning sensation in his eyes, his ears were clogged and his nose was stuffy.

Defendant recalled conversing with Ahlert and informing the officer that he was okay. He acknowledged that when interviewed by the police and Paige, he told them he was fine, did not feel any pain except for his knees, and declined to go to the hospital or receive treatment. As to the statements he made to Ahlert concerning the happening of the accident, defendant denies that Ahlert asked how the accident happened; and defendant did not volunteer any information concerning his beeper sounding prior to the accident.

On release from police headquarters, defendant proceeded home, where for the first time he felt tenderness in his chest and observed swelling of both knees and a laceration of between three to four inches in length on his left leg, directly below the knee. The next morning, at approximately 10:00 or 11:00 a.m., defendant went to the Irvington General Hospital emergency room, complaining of pain to his chest, wrists and knees. After x-rays were taken of those parts of his body, defendant was released. Six days later, defendant presented himself to Dr. Burgess Lee Berlin, an orthopedic surgeon who had previously treated defendant. The doctor has known defendant for approximately eleven years, both of them having been on staff at the same hospital. Defendant became Berlin's patient approximately four to five years prior.

Berlin testified concerning his examination of defendant. On September 22, 2006, after taking a medical history from defendant concerning the injuries he complained of, the doctor examined defendant. Berlin detected spasms in defendant's lower back; swelling of both knees; and an infected 4-1/2 inch laceration on the left leg immediately below the knee. Prior examinations of defendant had not disclosed any evidence of injuries to defendant's spine or to his knee cartilages. Based on defendant's complaints and his examination, Berlin clinically diagnosed defendant as possibly suffering from torn cartilages in both knees and a slipped disk.

On October 5, 2005, defendant submitted to MRI examinations. The MRI on the lower back disclosed a herniation at the L-3 - 4 level. The MRI's of the knees disclosed torn minisci of both knees. The doctor opined that the injuries to defendant's back and left knee were causally related to the motor vehicle accident. It was the doctor's opinion that defendant could not perform the field sobriety tests at the scene because of the injuries he sustained in the accident.

II.

The Municipal Court determined that the Alcotest instrument was in proper working order, that Rubelowsky was a certified Alcotest operator; and that the breath test was administered in accordance with proper procedures. Accordingly, the Municipal Court determined that defendant's BAC reading exceeded the statutory per se violation level of .08. The Municipal Court also accepted Patrolmen Ahlert's and Rubelowsky's opinions that defendant was intoxicated based on their observations of defendant at the scene, including his performance of the field sobriety tests, and at headquarters. Thus, the court also determined defendant was guilty of driving while intoxicated based on his physical condition.

Concerning defendant's testimony as to how the accident happened and of not being able to perform the field sobriety tests because of injuries suffered in the accident, the court determined defendant not credible. As to how the accident happened, the court found that, contrary to defendant's testimony that his pager had sounded and the accident occurred when he attempted to look at the pager to determine its responsive telephone number, defendant only informed Ahlert that his motor vehicle pulled to the right. As to defendant's inability to perform the field sobriety tests, the court noted that defendant had informed both the police and first-aid squad members he had not suffered any injuries requiring medical assistance; and that, although defendant felt some pain in his knees, he told Ahlert and Paige that he was able to perform the field tests.

The court also determined defendant's testimony concerning the amount of alcohol he had consumed not credible. Although defendant testified that Labessiere had opened a bottle of French wine, the bottle found in defendant's car was "a bottle of red wine, Napa Valley red wine. And the doctor's testimony is that five glasses came out of that bottle and it still left a half a bottle of wine. That just doesn't make a whole lot of sense to me unless they were shot glasses."

On appeal de novo, the Law Division also determined defendant guilty of driving under the influence based on the Alcotest reading. As to defendant's physical condition, the trial judge gave significant weight to the video showing defendant attempting to perform the heel-to-toe walk and the one-leg stand test. The court noted that the tape showed defendant's failure to comply with Ahlert's instructions while Berlin had only opined that defendant could not physically perform the tests because of his injuries, not that his mental faculties had been impaired by the injuries. The trial judge also rejected defendant's testimony concerning his inability to perform the balance test because of injuries: "[defendant] indicated that he could walk back [to Ahlert's] car without any difficulty. If that were the case, then obviously the knees and all those other injuries weren't bothering him. He indicated he was fine."

In determining defendant guilty, the judge stated:

So where does that leave me through all of this? Well, first of all, the readings are admissible. The readings to the lowest two digits are .20. That certainly exceeds the lawfully permissible reading. And it's a per se violation.

As far as observations, you've got the operation of the vehicle. You've got the odor of the alcohol. You've got the tests that -- I'm talking about the neurological and -- the neurophysical test, the failure to obey the instructions, the opinions of the police officers, the various things I've already referenced. And I may be forgetting some of them.

Obviously, Dr. Berlin['s] and [defendant's] . . . testimony was not accepted. I have to give due deference, or if it was accepted, it was accepted in a limited fashion. So based upon everything I've said and all the findings I've made, and it's taken me quite some time to do this, but I know how important it is, not only to the State but seemingly more important to [defendant], who has a practice, who has patients, who has people that rely upon him, who has to get to various hospitals, who on a third offence is subject to some mandatory penalties, I thought it deserved the time that I have given it.

III.

On appeal, defendant argues:

POINT I.

THE LAW DIVISION CONVICTION IS PREMISED ON A PER SE VIOLATION ONLY BASED ON AN ALCOTEST READING OF .20%.

POINT II.

THE ALCOTEST READING IS UNRELIABLE AND INADMISSIBLE FOR THE OPERATOR'S FAILURE TO OBSERVE DEFENDANT FOR THE TWENTY MINUTES.

Appeals from the Municipal Court to the Law Division are de novo. R. 3:23-8. The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge must make his or her "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983), certif. denied, 95 N.J. 197 (1983). The trial judge's function differs from this court's function. "His [or hers] is not the appellate function governed by the substantial evidence rule[,] but rather an independent fact-finding function . . . ." Ibid.

Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (internal citations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

IV.

The State carries the burden of proving beyond a reasonable doubt that a defendant is guilty of driving while intoxicated. Emery, supra, 27 N.J. at 353. N.J.S.A. 39:4-50(a) creates one offense that may be proven "through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). "A failure of proof on one aspect is not, by any measure, an acquittal." Ibid.

Proof of a defendant's physical condition typically consists of proof by testimony of the police officer's observations. State v. Weber, 220 N.J. Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987). A police officer is permitted to give his or her lay opinion as to whether a defendant is under the influence of alcohol. State v. Bealor, 187 N.J. 574, 585 (2006) (holding that "because sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication"); see also State v. Irelan, 375 N.J. Super. 100, 106-07 (App. Div. 2005). Additionally, the trial court may rely on direct and circumstantial evidence to determine whether the elements of the offense are met. Emery, supra, 27 N.J. at 356. It is against these principles that we consider defendant's arguments.

In Point I, defendant argues that the Law Division judge erred by not dismissing the charge of operating the motor vehicle under the influence of alcohol based on the State's failure to prove probable cause for his arrest. Based on the record before us, we determine this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant also argues in Point I that if we conclude that the Alcotest BAC reading is inadmissible for reasons argued in Point II of his brief, we should remand this matter to the Law Division to enter a judgment of not guilty because the Law Division judge did not expressly determine defendant's guilt based on his physical condition, only on his BAC level. At oral argument, we raised the issue of whether remanding this matter to the Law Division to render a determination of defendant's guilt based on defendant's physical condition would violate the principle of double jeopardy. We requested counsel to file supplemental memorandums of law on the issue. Defendant contends that any remand to the Law Division for further findings on this matter would constitute double jeopardy and a violation of due process and fundamental fairness. We conclude otherwise.

Initially, we agree with defendant's argument that, although the Law Division judge expressly determined defendant's guilt under the per se standard of N.J.S.A. 39:4-50(a), he did not expressly state that he found defendant guilty of the charge based on his physical condition. However, we disagree with defendant's argument that remanding the matter for the Law Division judge to expressly state whether he finds defendant guilty or not guilty based on his physical condition is prohibited by the principle of double jeopardy, due process, and fundamental fairness.

"The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Widmaier, 157 N.J. 475, 489-90 (1999). Here, the Law Division judge did not make a "not guilty" finding based on defendant's condition, nor did he unequivocally find that defendant was guilty of anything more than the per se violation of N.J.S.A. 39:4-50(a). What the judge did was note the observations and opinions of the officers referred to earlier in his decision, but he failed to make a definitive conclusion as to what those observations were indicative of - defendant's guilt or innocence. Because a remand will not subject defendant to a conviction after an acquittal, or to the possibility of conviction of a more serious offense, we conclude that such remand would not violate the principles of double jeopardy or due process. Kashi, supra, 180 N.J. at 48; see State v. Smith, 253 N.J. Super. 145, 148-49 (App. Div. 1992) (remanding a bail jumping conviction, N.J.S.A. 2C:29-7, to the Law Division for the trial judge to make further findings of fact and conclusions of law on the existing record as to whether defendant had fled to avoid apprehension for "a crime of third-degree or greater" necessary to sustain a conviction for third-degree bail jumping).

Defendant cites State v. Sparks, 261 N.J. Super. 458 (App. Div. 1993), in support of his argument that a remand would be improper. We find defendant's reliance on Sparks misplaced. In Sparks, defendant was charged with the disorderly persons offense of possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10a(4). Id. at 459. At the Municipal Court proceeding, the judge admitted evidence of a laboratory report that should have been excluded as untimely. Id. at 460-61. On de novo review, the Law Division correctly found that the evidence was inappropriately admitted, but improperly remanded the matter to the Municipal Court for a retrial. Ibid. Reversing and remanding for a judgment of acquittal, we explained that "[t]he hearing in the Law Division required exclusion of the lab certificate and consideration of the case solely on the remaining testimony." Id. at 461-62. Because "[e]xclusion of the laboratory certificate left the State without proof necessary to sustain a conviction[,]" we acquitted the defendant. Id. at 460.

This case is distinguishable from Sparks because, even if the Alcotest result is determined inadmissible, defendant can still be convicted based on police observations of his physical manifestations and the police officers' opinions as to defendant's intoxication. Kashi, supra, 360 N.J. Super. at 545. Moreover, we only acquitted the defendant in Sparks because of the fact that the conviction could not be sustained without the inadmissible evidence. Ibid. It follows that, if in Sparks the State had sufficient evidence other than the lab report to convict the defendant, we would have permitted the remand and retrial.

We are satisfied that a limited remand to the Law Division for the trial judge to make an expressed determination of defendant's guilt or innocence based on defendant's physical condition is not prohibited by the principles of double jeopardy, due process, or fundamental fairness. We are also satisfied that that remand should occur prior to our addressing defendant's arguments in Point II and III of his brief, with this court retaining jurisdiction in the matter. Accordingly, we remand the matter to the Law Division for the judge to make an expressed determination of defendant's guilt or innocence based on defendant's physical condition. No additional evidence shall be admitted on remand; rather, the judge's determination must be based on the existing record. The judge shall conclude the remand proceeding and advise this court of his findings and conclusions within thirty days of the date of this opinion.

Remanded to the Law Division for further proceedings consisting with this opinion; we retain jurisdiction.

The Alcotest instrument used to test defendant was the Alcotest Model No. 7110 MKIII (the Alcotest). This Alcotest, when utilized with New Jersey Firmware version 3.11, was determined generally scientifically reliable, with certain modifications, to "permit its results to be admissible . . . to prove a per se violation of [N.J.S.A. 39:4-50(a)]." State v. Chun, 194 N.J. 54, 65, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed.2d 41 (2008). The present matter was tried in both the Municipal Court and the Law Division prior to the Supreme Court's decision.

"The Altotest uses both infrared (IR) technology and electrical chemical (EC) oxidation in a fuel cell to measure breath alcohol concentration. The devise therefore produces two test results for each breath sample, one derived from an IR reading and the other, by and large, from an EC reading." Id. at 78.

Truncating "involves simply reporting the first and second decimal places and dropping the third. . . . The effect of truncating, as opposed to rounding, is to under-report the concentration, to the benefit of the arrestee." Id. at 83.

As to defendant's inability to perform the field sobriety tests, the court only considered defendant's performance of the heel-to-toe walk test and the one-leg stand test. The court did not consider the officer's testimony as to defendant's inability to perform the HGN test in determining defendant's guilt; the court, however, did consider defendant's failure to follow Ahlert's instructions in attempting the HGN test in determining probable cause for the arrest. See State v. Doriguzzi, 334 N.J. Super. 530, 546 (App. Div. 2000) (declining to take judicial notice of the general acceptance of the reliability of the HGN test as evidence of a defendant's intoxication).